Om Prakash Jaidia & Ors vs State & Anr
2016 Latest Caselaw 239 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: 13th January, 2016

+                            CRL.M.C. No.128/2016

      OM PRAKASH JAIDIA & ORS
                                                              ..... Petitioners
                             Represented by:   Mr.Manoj Kumar Sharma,
                                               Adv with petitioners in
                                               person.
                             versus
      STATE & ANR
                                                           ..... Respondents
                             Represented by:   Mr.Satya Narian, APP with
                                               SI Sumer Chand, PS Nabi
                                               Karim, Delhi in person.
                                               Mr.Sumit Sharma, Adv for
                                               R2 / complainant with R2 in
                                               person.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

SURESH KAIT, J. (Oral)

Crl.M.A.544/2016 (for exemption) Exemptions allowed, subject to all just exceptions. Accordingly, the application is allowed.

CRL.M.C. No.128/2016

1. Vide the present petition filed under Section 482 of the Code of Criminal Procedure, 1973, petitioners seek quashing of FIR No.3/2013 registered at Police Station Nabi Karim for the offences punishable under Sections 323/341/542/34 of the IPC and the consequential proceedings emanating therefrom against them.

2. Learned counsel appearing on behalf of the petitioners submits that the aforesaid case was registered on the complaint of respondent No.2, Dharamvir as a scuffle took place due to misunderstanding. The police chargesheeted the petitioners and after framing of charges matter is pending for trial before learned Trial Court. Meanwhile, the respondent No.2 has amicably settled the disputes with the petitioners vide Compromise Deed dated 01.04.2015 due to intervention of common friends and respectable members of society.

3. Respondents No.2 is personally present in the Court through learned counsel above named and has been duly identified by the Investigating Officer of the case. Learned counsel for respondent No.2 under instructions, does not dispute as to what is stated by learned counsel for petitioners and also submits that consequent to settlement between the parties, respondent No.2 does not wish to pursue the matter against petitioners. The affidavit of respondent No.2 is at Page No.20 of the petition. Further submit that the respondent No.2 does not wish to pursue this case further and has no objection if the present petition is allowed.

4. Learned Additional Public Prosecutor appearing on behalf of the State submits that chargesheet has been filed by the police after investigation and matter is pending trial before learned Trial Court. In the process, though matter has been settled amicably between the parties, but public time and money has been consumed and if this Court is inclined to allow the instant petition, petitioners be burdened with some cost.

5. Undisputedly, offence punishable under Section 452 of the IPC is non compoundable, however, considering the facts and circumstances of

the case and in exercise of the inherent powers under Section 482 of the Code of Criminal Procedure, 1973, this Court has power to accept the compromise. This issue has been decided by the Constitution Bench of the Supreme Court in the case titled as Gian Singh Vs. State of Punjab and Another (2012) 2 SCC (L&S) 998 wherein held as under:

"61....... the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences Under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre- dominatingly civil favour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the

family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding."

6. The aforesaid view has been affirmed by the Apex Court in the case of Narinder Singh & Ors. Vs. State of Punjab & Anr 2014 6 SCC 466 wherein held as under:-

29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

29.1 Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not

compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the

High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial

court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

7. Both the parties who are present in the Court today, approbate the aforesaid settlement dated 01.04.2015 and undertake to remain bound by the same.

8. As discussed above, offence punishable under Section 452 of the IPC is non-compoundable being of serious nature, however, if the Court feels that continuation of criminal proceedings will be an exercise in futility and justice in this case demands that the dispute between the parties is put to an end and peace is restored, it can order for quashing of the FIR or criminal proceedings as it is the duty of the Court to prevent continuation of unnecessary judicial process.

9. In view of the law discussed above, considering the settlement arrived at between the parties and the statements of respondent Nos.1&2, I am of the considered opinion that this matter deserves to be given a quietus as continuance of proceedings arising out of the FIR in question would be an exercise in futility.

10. Before parting with instant order, though I find force in the

submissions of learned Prosecutor for the State regarding putting some costs upon petitioners, however keeping in view their avocation and financial status, I am not inclined to do so.

11. Consequently, FIR No.3/2013 registered at Police Station Nabi Karim, Delhi for the offences punishable under Sections 323/341/452/34 of the IPC and all proceedings emanating therefrom, are hereby quashed.

12. Accordingly, the present petition is allowed.

SURESH KAIT (JUDGE) JANUARY 13, 2016 M/jg